Giving (and receiving) the verbals – the hazards of verbal references

The recent case of Pnaiser -v- NHS England and Coventry City Council highlights the danger of verbal references.

By way of brief summary, Ms Pnaiser worked for Coventry City Council. She suffered from a medical condition which meant that she had taken a lot of time off work. The medical condition amounted to a disability under the Equality Act 2010. For reasons unconnected with her disability, Ms Pnaiser was made redundant and her employment with the Council came to an end. The terms of Ms Pnaiser’s termination of employment were governed by a settlement agreement.

When employees leave under the terms of a settlement agreement, the departing employee will often want to know precisely what will be said about her. This gives certainty for the departing employee and it is often one of the reasons why a departing employee will be willing to agree to the terms of a settlement agreement. In this case, the reference for Ms Pnaiser was fairly bland and provided the dates of employment, job title and the main duties of her role. The agreed reference (as you would expect) did not provide details of Ms Pnaiser’s sickness record which showed that she had taken a lot of time off work due to her medical condition.

Ms Pnaiser applied for a job with NHS England and was interviewed by a Professor Rashid. His interview notes described her as an excellent candidate. On this basis, Ms Pnaiser was offered the job which was subject to employment references. The agreed written reference was subsequently provided. This is where matters took a turn for the worse.

Professor Rashid was not satisfied with the written reference provided in relation to Ms Pnaiser and he therefore did what many prospective employers do, he telephoned the previous employer. Professor Rashid then had a telephone conversation with a Ms Tennant who worked for Coventry City Council. Ms Tennant informed Professor Rashid that she could not supply him with details of the Claimant’s sickness absence record but she told him that the Claimant had taken significant periods of sickness absence and, as a result, it was difficult for her to judge whether Ms Pnaiser was suitable for the role. Ms Tennant said that, in making this comment, she was conscious that her last contact with Ms Pnaiser had been 5 months earlier when she was still signed off by her GP due to long term sickness and that the long term sickness had lasted almost 8 months.

On the basis of the telephone conversation between Professor Rashid and Ms Tennant, it appears that the job offer was withdrawn (although this was disputed by Professor Rashid who said that, by this time, he was having second thoughts anyway for unconnected reasons).

After withdrawal of the job offer, Ms Pnaiser brought claims against both Coventry City Council and NHS England. The claims were that:

1. the giving of the negative reference by Coventry City Council was unfavourable treatment which arose in consequence of her disability;
2. the withdrawal of the offer by NHS England was unfavourable treatment arising in consequence of her disability.

Both claims ultimately succeeded.

There is a tension between the benefit and risk of verbal references. Verbal references are often the references that prospective employers really want. Written references are often guarded and carefully drafted. In some cases they are so short as to be of no real use at all. What is said away from the guarded written reference is usually more important (and of more interest) to the prospective employer. Over the years, many employers have said to me that they will pay more attention to the “off the record” reference provided verbally than the written document.

There is no doubt, therefore, that the verbal reference can be useful to find out some information about the prospective employee. The problem is, however, is that this can get both parties into hot water, as was illustrated by this case. The problem with verbal references really comes down to the lack of control, i.e. there is no control as to:

• who will provide the verbal reference?
• what might be said in the verbal reference?
• how the giving or taking of the verbal reference will be recorded?

I fully accept that the bland written references often provided to prospective employers are pretty much useless. The way references are drafted in many cases these days are a direct result of the series of cases relating to references. These cases confirm that employers owe their former employees a duty of care in connection with the giving of references. In addition, case law has confirmed how the duty of care can be breached by the giving of some and omission of other information. Given that there is generally no obligation to provide a detailed (or indeed any) reference, many employers simply take the easy option and provide a very bland reference.

It is fair to say the situation is that employers generally wants to obtain verbal references but employment lawyers generally break out into cold sweats when they hear about them.

This case won’t stop the giving or taking of verbal references but it is a useful reminder of the risks involved. As a prospective employer, you should be aware that, if you withdraw a job offer on the basis of the verbal reference, the contents of that verbal reference may be scrutinised by an Employment Tribunal at a later date. If it relates to one of the protected characteristics under the Equality Act 2010 then you run the serious risk of a discrimination claim being brought against you and (as in this case) being successful.

As an employer of the departing (or departed) employee, you run the risk of a claim when you need not say anything generally. As I have said above, verbal references won’t stop and they are in many cases quite helpful. Many employers will take the view that the advantages outweigh the risks but it is always worth having a reminder of the potential risks (even if Coventry City Council and NHS England might not agree on this occasion).